OFN
[2014] NSWCATGD 31
•22 September 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: OFN [2014] NSWCATGD 31 Hearing dates: 22 August 2014 Decision date: 22 September 2014 Jurisdiction: Guardianship Division Before: Simpson J, Senior Member (Legal)
Rayner R, Senior Member (Professional)
Newman J, General Member (Community)Decision: Guardianship order suspended; further review ordered.
Catchwords: GUARDIANSHIP - application to review guardianship order - coercive orders - enduring guardianship appointment made - suspension of guardianship order to allow enduring guardians to act. Legislation Cited: Guardianship Act 1987 (NSW) Category: Principal judgment Parties: Mrs OFN (subject person)
Mrs KME (guardian)
Ms BHN (guardian)
Mr HAN (spouse)File Number(s): 55622 Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).
reasons for decision
What the Tribunal decided
The Tribunal suspended the guardianship order in relation to Mrs OFN and decided to conduct a further review of the order at the end of October 2014.
Background
Mrs OFN is a 78-year old woman who appeared to need permanent placement in an aged care facility. In April 2014, the Tribunal appointed Mrs OFN's two daughters, Mrs KME and Ms BHN, as joint guardians to make decisions about Mrs OFN's accommodation including a coercive capacity. The two daughters were already identified as guardians under an appointment of enduring guardian made in January 2014 but this did not cover any coercive capacity.
Mrs OFN's husband is Mr HAN who lives on a property outside Regional NSW.
Dr Z, psychiatrist of old age, had assessed Mrs OFN in March 2014 following a major change in her behaviour, personality and cognition. She showed features consistent with hypermania which Dr Z saw as due to her brain pathology. She had mild memory impairment, elevated mood, grand plans and confabulatory delusional ideas. Her behaviour was often aggressive. There was some possibility of her condition improving but Dr Z thought it likely she would need to be in a residential aged care facility.
Following the April hearing, Mrs OFN continued to live at an aged care facility in Regional NSW. However, in early June, Ms BHN and Mr HAN took Mrs OFN out at the weekend and subsequently decided that she should stay living with Mr HAN.
Mrs KME was very concerned about this sequence of events. She had not agreed to her mother being removed from the aged care facility. She applied for a review of the guardianship order with a view to the Public Guardian taking over as guardian. She sought to be relieved of the role.
On a requested review of a guardianship order, the Tribunal may vary, suspend or confirm the order (Guardianship Act 1987 (NSW) section 25C(1)).
The current situation
By the time of the hearing, Mrs OFN had been out of the aged care facility for 2.5 months and the evidence from her and Mr HAN and Ms BHN was that she is much happier, her mental functioning has improved and there have been no difficulties meeting her support needs on the property. Ms BHN has moved from Melbourne to the property though she does need to go to Melbourne for up to three days a week for work purposes.
Ms Y, social worker with a specialist services provider for older people, was concerned about Mrs OFN having returned to the family property in view of the difficulties there had been meeting her needs prior to her moving to the aged care facility. Ms Y was arranging a review of Mrs OFN by Dr Z which should occur in early September and Ms Y would see Mrs OFN before then.
In the hearing, Mr HAN said that he and Ms BHN had done the wrong thing but was clear that they had acted in Mrs OFN's best interests.
Mrs KME said that she had visited her mother a few times since she returned to the property. Mrs OFN is settled and has improved. Mrs KME had no concerns about her father's ability to care for her mother. Mrs KME was open to the suggestion of the Tribunal that it might decide to suspend the guardianship order until a further hearing at the end of October.
The Tribunal suspended the guardianship order
With the differences there have been between the two guardians and Mrs KME wanting to be relieved of the role of guardian, it was clear that the Tribunal should give effect to this wish.
On the current evidence, the Tribunal was not clear whether guardianship needs to continue and if so what form the guardianship order should take. The unfolding of a little further time, the assessments of Ms Y and Dr Z and a face-to-face hearing will allow the Tribunal to make decisions on these issues.
In the meantime, the Tribunal saw the best course as being to suspend the guardianship order and have another review hearing at the end of October. The suspension of the order means that neither the order nor the previous appointment of enduring guardians can be used.
If some crisis occurs, the Tribunal can be asked to have a further hearing before late October.
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 22 October 2014
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